After New DNA Tests, Inmate's Pardon Likely / Bush could decide fate of Texan by next week

New York Times

Published
4:00 am PDT, Tuesday, July 25, 2000

2000-07-25 04:00:00 PDT Houston -- A Texas inmate whose rape conviction attracted national attention in 1998 after the state's highest criminal court disregarded DNA evidence and refused to grant him a new trial is now receiving a recommendation that he be pardoned.

The recommendation for the man, Roy Criner, who was sentenced to life in prison in 1990 for the rape of a 16-year-old hitchhiker, could land on the desk of Gov. George W. Bush as soon as next week. New DNA tests completed this month persuaded officials in Montgomery County, including the district attorney, the sheriff and the presiding judge, to join Criner's lawyer in asking that the inmate be freed.

"I'm assuming that Criner at some point will be pardoned," said Michael McDougal, district attorney in the county about 20 miles north of Houston. A court hearing will be held Friday to make the application for pardon final.

Linda Edwards, a spokeswoman for Bush, said state law required that Criner's application first be approved by the Texas Board of Pardons and Paroles before the governor could grant a pardon. But since 1997, the paroles board has weighed new DNA evidence favorably in recommending pardons for three other inmates convicted of rape or sexual assault. And in all three cases, the latest of which was in May, Bush has approved the pardons.

"The governor will make a decision very quickly once he gets a recommendation from the board," Edwards said.

For critics of the criminal justice system in Texas, the Criner case has long stood out.

The case involved the 1986 rape and murder of Deanna Ogg, a high school student who was found bludgeoned and stabbed to death. Criner, then 33, was charged with capital murder and rape based on statements he made to three acquaintances that he had picked up a hitchhiker, threatened her and had sex with her.

The murder charge was dropped for lack of evidence, but Criner was convicted of aggravated rape, although there was no physical evidence.

In 1997, a DNA test determined that semen found inside the victim's body was not Criner's. His lawyer, Michael Charlton, sought a new trial, and the presiding state district judge, Michael Mayes, agreed.

But on appeal, the Texas Court of Criminal Appeals reversed Mayes' ruling and denied the new trial. Writing for the majority, Judge Sharon Keller concluded that the DNA evidence did not prove Criner's innocence, noting, for example, that the victim might have had sex with another person "at a time relatively near her death."

"It was Kafkaesque reasoning," said Barry Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law in Manhattan, "and a troubling exercise in mental gymnastics to avoid accepting the truth. It was a stunning and outrageous decision by the Court of Criminal Appeals."

The new DNA testing, completed this month, involved a cigarette butt collected from the crime scene. Tests at an independent lab in California, and later at the Texas Department of Public Safety, determined that the DNA of two people could be found on the cigarette -- that of Ogg and of the same person whose semen was found in her body.